The cases brought in the names of Philando Castile, Terence Crutcher, Tamir Rice and Freddie Gray never made it to trial. Each was brought to a halt earlier in the civil court process. This is an all-too-common occurrence, says Joshua Newville, a civil rights attorney in Minneapolis.

“It can be disheartening to see a flood of cases that overwhelmingly side with police officers,” he says. “Judges, like most Americans, want to believe that the people we choose to protect us aren’t capable of the heinous acts that they are accused of. They truly at their core want to believe that. In some of these cases, [the belief] clouds judges’ summary judgment and qualified immunity analysis in a way that it shouldn’t.”

Motions and Hearings, Briefly Explained

As soon as a lawsuit is filed alleging police misconduct, it is assigned to a district court judge. The attorney defending the police officer then has the option to file myriad motions seeking to dismiss the suit or certain elements of it (an item of evidence, for example). The defense attorney can also file motions for hearings that, depending on their result, can also stop a case before it reaches a jury trial.

Practically speaking, an alleged victim must win at several of these hearings to be allowed to be given an opportunity for settlement or a civil jury trial. If they do win, Newville says settlement offers often become much more substantial.

A hearing for summary judgment is a common one that gets in the way. At this hearing, an alleged victim must prove to the court that there is a dispute on a material fact relating to the claim, and a reasonable jury could believe the allegations that would allow them to prove liability. This can be difficult to prove in many civil cases, but in police misconduct cases, specifically, it often hinges on a he-said, she-said situation. That should be viewed as the very definition of a dispute as to the material facts, Newville says, but judges often rule otherwise and the case doesn’t move beyond this hearing.

There is another standard in police misconduct or brutality cases: the qualified immunity standard. An alleged victim must prove two things:

1. that a reasonable officer in the same position would have known that the conduct was unlawful
2. that the conduct is clearly established as unlawful.

“These two standards collectively have been used to throw police misconduct cases out far too often,” says Newville. “The numbers are disproportionate to other cases. The rulings coming out of the court seem to show that these standards are being applied in a way that isn’t fair to police victims.”

In her dissent on Kisela v. Hughes, U.S. Supreme Court Justice Sonia Sotomayor agreed: “Such a one-sided approach to qualified immunity transforms the doctrine into an absolute shield for law enforcement officers, gutting the deterrent effect of the Fourth Amendment. It also sends an alarming signal to law enforcement officers and the public. … It tells officers that they can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished.”

What can a victim of misconduct do?

Before making any complaints with the police, gather all the evidence you can (e.g. witness statements, videos, pictures of injuries). Then find an experienced and reputable civil rights litigation attorney immediately.

Despite the challenges they may face, a victim must try to make their voice heard, Newville says. “The last bastion of hope is the courts.”

Madia Law’s Joshua Newville was quoted in the Minneapolis Star Tribune regarding the Supreme Court’s consideration Masterpiece Cakeshop v. Colorado Civil Rights Commission and a similar case pending in Minnesota federal court. Newville debated Alliance Defending Freedom‘s Jordan Lorence at the University of Minnesota Law School on November 8.

A Minor Cannot Consent to Sex.

Minors under the age of 18 can’t consent to sex with adults under Minnesota state law.  An adult over the age of 22 who has sex with someone younger than 18 has engaged in statutory rape.  That includes police officers: police officers and law enforcement officials may not have sex with women under the age of 18.

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Today, presidential nominee Donald Trump said he would resume the practice of giving surplus military-grade equipment to local police departments, which President Obama banned in 2014. Trump said, “I think it’s ridiculous that they’re not” given the equipment.

I spoke with a journalist at the Wisconsin Reporter about the issue in 2014. It probably won’t surprise you that I disagree with Mr. Trump.

A Riviera Beach, Florida police officer in now on paid administrative leave after a video recorded on a mobile phone showed him confronting a disabled U.S. Army veteran parked in a parking space reserved for individuals with disabilities. Although the veteran had a properly displayed handicapped parking permit, the police officer confronted him because, according to the officer, the veteran didn’t look disabled. The veteran began recording the incident and says that the officer slapped the phone out of his hand, damaging it. The police department says the incident is being investigated.

In July 2014, Madia Law obtained a successful trial verdict against a Metro Transit Police officer for similar conduct. The officer confronted our client on the Metro Transit light rail and asked for his train fare and identification. When our client provided both, and the officer then questioned the legitimacy of our client’s disability, asking “What’s the matter with you? You don’t seem disabled to me?” The jury found that the officer violated the 4th Amendment’s guarantee of freedom from unreasonable search and seizure.

Today, in light of the Supreme Court’s ruling in Obergefell v. Hodges, 135 S. Ct. 2584 (2015), the United States Court of Appeals for the Eighth Circuit affirmed a Madia Law victory in Rosenbrahn v. Daugaard, a historic case challenging the constitutionality of South Dakota’s bans on marriage equality for same-sex couples.

On January 12, 2015, the United States District Court for the District of South Dakota entered judgment in favor of six same-sex couples represented by Madia Law, declaring:

SDCL 25-1-1, SDCL 25-1-38, Article 21 § 9 of the South Dakota Constitution, and any other provision of state law that precludes people from marrying or refuses to recognize an existing marriage, solely because the individuals are of the same gender are unconstitutional because they violate the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment.

Rosenbrahn v. Daugaard, No. 4:14-CV-04081-KES, 2015 WL 144567, at *11 (D.S.D. Jan. 12, 2015). The court further ordered that, “defendants are enjoined from enforcing those laws or otherwise declining to issue a marriage license solely because the applicants are of the same gender.” Id.

The court also ordered that, “the effects of [the] judgment will be stayed until the judgment is final.” Id. The State defendants appealed to the 8th Circuit. While the appeal was pending, the Supreme Court decided Obergefell v. Hodges, a decision that should have spelled immediate victory for the plaintiffs in the South Dakota case. Instead, the South Dakota Attorney General chose to continue being an impediment to equality, unnecessarily delaying the inevitable and continuing to drive up the costs of the litigation by making a motion at the 8th Circuit that sought to rewrite the history books, pretending as if South Dakota never violated the Constitution.

Today, the 8th Circuit rejected that argument, allowing the district court judgment invalidating South Dakota’s marriage bans to take permanent effect. This is important. The district court ordered,“defendants are enjoined from enforcing those laws or otherwise declining to issue a marriage license solely because the applicants are of the same gender.” 2015 WL 144567, at *11.

But on July 2, 2015, the Attorney General publicly stated that clerks may refuse to issue marriage licenses to same-sex couples for religious reasons. As the district court’s order makes clear, the Attorney General is wrong. Clerks who treat same-sex couples differently than different-sex couples—for any reason whatsoever—violate the Constitution. Any clerk who does so will face a lawsuit.

A Virginia police officer has resigned after being accused of using excessive force when responding to a call about a potential hit-and-run. Fredericksburg, VA Police Officer Shaun Jergens was among several who responded to a reported accident on May 4, 2015. Jergens, apparently like the other officers on the scene, assumed that a black man in a stopped car was being noncompliant.

In actuality, the man had apparently suffered a stroke. Despite no evidence of willful and active resistance, the officers proceeded to taze and pepper spray the man. Once they had him out of the car and on the ground, the man’s foot was then run over by his own vehicle. Reports the NY Daily News:

“It was dispatched via the radio that citizens reported that the suspect was moving around a lot inside of his vehicle,” Jergens said in a statement to the Free Lance-Star. “I believed that the suspect may be looking for a weapon or looking to conceal a weapon based on this information and the fact that he was believed to be fleeing a felony (hit and run of an occupied vehicle).”

Although most police officers are good people, too often, cops treat all citizens that they interact with as both criminals and as people undeserving of respect. This can be the result of a police department that fosters such a culture. Madia Law represents victims of police misconduct, excessive force, and unlawful arrest. It is a violation of the 4th Amendment of the Constitution when cops act in such manners. Federal law allows victims of police abuse to file federal lawsuits.

Historic, unprecedented, monumental… no single word fully encapsulates the magnitude and impact the past three years have had on marriage rights for gay and lesbian Americans. By the end of next month, the Supreme Court will decide whether gay and lesbians have a constitutional right to marry and whether states can permissibly deny them of that right by refusing to issue them marriage licenses and/or denying them recognition of out-of-state marriages. How did we get to this point? What is left for the Supreme Court to decide? What will be the impacts of the Supreme Court’s pending decision? To answer these questions, let’s reflect on the legal history related to marriage and gay rights that brings us to where we stand today, and may give us insight into where we’re headed next.

Background

In 1967, the Supreme Court decided Loving v. Virginia, 388 U.S. 1, a case in which police conducted a nighttime raid of the home of Mildred and Richard Loving. The Lovings, an interracial couple married in Washington D.C. in 1958, were arrested for living together as husband and wife—violating Virginia’s anti-miscegenation law. The Supreme Court unanimously struck down the law, writing that marriage is a fundamental civil right and that depriving that right on the basis of a race was not permissible. Id. at 12.

In 1970, a gay couple from the University of Minnesota—Richard Baker and James McConnell—applied for a marriage license in Hennepin County. After being denied, they sued for violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Among their claims, the plaintiffs argued that the law impermissibly classified on the basis of gender. The trial court dismissed their case, which the Minnesota Supreme Court upheld in 1971. Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971). The couple then appealed to the U.S. Supreme Court. Until 1988, it was mandatory for the Court to accept such appeals from state supreme courts. Thus, although a denial of certiorari is not usually an endorsement of a lower court’s decision, in the case of Baker, the Supreme Court’s one sentence opinion that, “[t]he appeal is dismissed for want of a substantial federal question[,]” Baker v. Nelson, 409 U.S. 810 (1972), was—at least at that time—considered to be a binding decision on the merits.

Just one year after Baker was decided, in 1973, the Supreme Court elevated the level of constitutional scrutiny for laws that classify based on gender, concluding that such laws must, like race and national origin, be subjected to heightened judicial scrutiny. Frontiero v. Richardson, 411 U.S. 677, 688 (1973).

In 1974, the State of Wisconsin denied Roger Redhail a marriage license because he was in arrears on court ordered child support after having a child while in high school. Redhail filed a class action suit against a Milwaukee County official, which found its way to a Supreme Court opinion in 1978. Justice Marshall cited and reiterated the Court’s position in Loving, writing that marriage is a fundamental right, the deprivation of which requires strict scrutiny. Zablocki v. Redhail, 434 U.S. 374 (1978). Nine years later, the Supreme Court again recognized the fundamental right to marry in Turner v. Safley, 482 U.S. 78 (1987) (striking down a law barring prison inmates from marrying).

In 1986, the Supreme Court upheld a Georgia law that criminalized gay sex. Chief Justice Warren Burger wrote in concurrence that ancient roots prohibited homosexual sex, calling it an infamous crime against nature that is worse than rape. He argued that framing such laws as fundamental rights violations would be to “cast aside millennia of moral teaching.” Bowers v. Hardwick, 478 U.S. 186 (1986).

In 1992, a 53% majority of Colorado voters approved a ballot measure that amended the Colorado Constitution. The amendment prohibited every county, city, and town within Colorado from protecting gay and lesbian individuals from discrimination. In 1996, the Supreme Court reviewed the amendment in Romer v. Evans, 517 U.S. 620 (1996). In the Court’s opinion, Justice Kennedy did not explicitly state which level of constitutional scrutiny the Court was applying, but wrote that, “laws of the kind… raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected,” and concluded that the ballot measure was born of a “bare… desire to harm a politically unpopular group.” Id. at 634. The Court added, “[i]f the constitutional conception of equal protection of the laws means anything, it must at the very least mean that a bare… desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.” Id. (emphasis in original) (internal citations omitted).

Then, in the mid-1990’s, following a Hawaii Supreme Court decision that raised the prospect of same-sex couples being allowed to marry,[1] both the federal government and states across the country began enacting statutory bans explicitly excluding same-sex couples from marrying and/or recognizing those marriages. Like the myriad state laws passed at that time, the federal Defense of Marriage Act, passed by Congress in 1996, was also motivated by a desire to specifically avoid recognizing marriages of same-sex couples. This represented a stark departure from both the federal government’s and most states’ longstanding practice of recognizing valid marriages from any of the states. This rule—known as the “place of celebration rule”—is recognized in nearly every state and is a defining element of our federal system and American family law.[2] For example, some states will allow cousins to marry while many will not; yet, even in states that don’t grant such marriages, those states will usually recognize out-of-state marriages as long as they are valid in the conferring state.[3] That rule usually applies even when a couple leaves a state to marry in order to avoid a prohibition under their home-state marriage laws.[4]

In 1998, Alaska became the first state in the union to go beyond a statutory ban on marriage for same-sex couples, also passing a ballot measure that constitutionally restricted marriage to one man and one woman. Despite—and perhaps because of—the Supreme Court’s decision in Romer, gay and lesbian Americans were being targeted for disparate governmental treatment like never before. That same year, officials in Texas criminally prosecuted a gay male couple for having sex in the confines of a private bedroom. Texas’ sodomy laws, like those in 13 other states, explicitly prohibited homosexual acts, effectively making homosexuality illegal. See generally Lawrence v. Texas, 539 U.S. 558 (2003).

In 2003, the Supreme Court struck down those laws—and overruled its Bowers decision in Lawrence, concluding that the two Texans, like all individuals, were free under the Constitution to engage in intimate sexual conduct “in the confines of their homes and their own private lives and still retain their dignity as free persons.” 539 U.S. at 567. The Court found that “[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.” Id. Further, while the Court held that “the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice[.]” Id. at 577.

Also in 2003, the Massachusetts Supreme Court became the first court in the country to strike down a state’s marriage ban and require the state to marry same-sex couples. Goodridge v. Dept. of Public Health, 798 N.E.2d 941 (Mass. 2003). The backlash was swift and widespread. Dozens of states began following Alaska’s lead and incorporating marriage bans into their constitutions in an effort to block state courts from overruling their statutory bans. By 2008, 29 states passed measures similar to Alaska at the polls, many barring not only marriages, but also prohibiting state recognition of any type of same-sex relationship. Nebraska was one such state. It was also the first to state to have its ban struck down in federal court.

Before he was overturned by the Eighth Circuit, U.S. District Court Judge Joseph Bataillon struck down Nebraska’s ban in a Romer-style equal protection case called Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th Cir. 2006). The plaintiffs argued that Nebraska’s constitutional amendment impermissibly “raise[d] an insurmountable political barrier to same-sex couples,” but they did not seek the right to marry. Id. at 865. The Eighth Circuit wrote that, in order to determine the appropriate level of scrutiny for classifications based on sexual orientation, “the most relevant precedents [were] murky,” Id. at 865–66 (emphasis added). Accordingly, the court tested Nebraska’s ban against the lowest level of constitutional scrutiny—the rational-basis test. Under that deferential standard, the Eighth Circuit upheld the amendment, writing that “laws limiting the state-recognized institution of marriage to heterosexual couples . . . do not violate the Constitution of the United States.” Id.

The Eighth Circuit wasn’t the only appellate court to struggle with the Supreme Court’s “murky” precedent on constitutional scrutiny for sexual orientation classifications. For example, in 2008, the Ninth Circuit reached a similar conclusion to the Bruning court in Witt v. Dep’t of Air Force, 527 F.3d 806, 821 (9th Cir. 2008), concluding that barring further pronouncement by the Supreme Court, it would apply rational basis review to equal protection claims involving classifications based on sexual orientation. Nevertheless, gay rights advocates doubled their efforts, focusing on engaging the public and winning hearts and minds by having conversations about love and fairness.

Recent Developments

Three years ago, in May 2012, President Obama declared his support for marriage equality. At the time, only six states allowed same-sex couples to marry, and the federal government refused to recognize those nuptials. In Minnesota, voters were debating what became the most expensive ballot initiative in our history, a measure that—had it been successful—would’ve made Minnesota the 31st state to constitutionally ban marriage for gay and lesbian couples. Minnesota became the first state in the nation to successfully block such an amendment at the ballot box.

Two years ago today, marriage equality advocates were anxiously awaiting decisions from the Supreme Court in United States v. Windsor, 133 S. Ct. 2675 (2013), a case challenging the constitutionality of the federal Defense of Marriage Act (“DOMA”), and Hollingsworth v. Perry, 133 S. Ct. 2652 (2013), a California case challenging the constitutionality of one of those state-level ballot measures (“Proposition 8”). Pundits heralded the lawsuits as two of the most important civil rights cases of our time, each having the potential to become landmark precedent.

As it turned out, Perry was mostly forgotten after the Supreme Court’s standing-based decision didn’t address whether states may deny marriage based on sexual orientation or gender.[5] The Court’s failure to reach the merits of the case was a disappointment for millions of gay Americans, including same-sex couples in the 37 states that, following the decision, still suffered marriage discrimination by their government and the resulting stigma that they were less equal than their neighbors.

Yet, despite Perry’s narrow results, the Supreme Court’s 2013 term was a win—a win for the same-sex couples in those 13 states that did have marriage equality, a win for gay and lesbians in general, a win for civil rights, and a win for the principles of equality, morality, and human dignity. This is because the Court’s decision in Windsor struck at the heart of DOMA, declaring—in no uncertain terms—that gay and lesbian relationships deserve dignity, due process, and equal protection. Justice Kennedy, writing for the Court, repeatedly emphasized that although states may generally define and regulate marriage, that such regulation, “of course, must respect the constitutional rights of persons.” 133 S. Ct. 2675, 2691. Thus, although Windsor didn’t explicitly decide whether states may block same-sex couples from marrying, it prompted marriage equality advocates to use its conspicuous tea leaves to light a fire.

Within one year of the decision, advocates challenged every state marriage ban and anti-recognition law in the country with at least one lawsuit. Since then, nearly every court to rule has held that Windsor’s logic requires invalidation of such laws. In numbers, that is 60+ rulings in over 40 different courts in every corner of the country, including the United States Courts of Appeals for the Tenth, Ninth, Seventh, and Fourth Circuits. In contrast, only one federal appellate court—the Sixth Circuit—and a handful of trial courts have upheld such bans.

When the Fourth, Seventh, Ninth, and Tenth Circuits struck down marriage bans and anti-recognition laws, most legal experts expected that the United States Supreme Court would review some or all of those decisions—particularly in light of the fact that all parties asked the Court to do so. But in September 2014, while visiting the University of Minnesota Law School, Justice Ginsburg hinted that the Court likely wouldn’t take the cases unless there was a circuit split. She reasoned that there was “no urgency” since the there wasn’t any disagreement. Sure enough, less than one month later, the Supreme Court denied cert. in the 10th, 7th, and 4th Circuit cases.

Pending Supreme Court Decision

Then, in November 2014, in DeBoer v. Snyder, 772 F.3d 388 (6th Cir. 2014), the Sixth Circuit Court of Appeals overturned lower federal court decisions in Michigan, Kentucky, Tennessee, and Ohio, becoming the first and only federal appellate court, after Windsor, to uphold marriage bans and anti-recognition laws. This created the circuit split Justice Ginsburg was talking about, which explains why the Court granted cert. in the Sixth Circuit cases in January of this year.

Today, after less time has elapsed than it takes to complete law school, 31 more states have marriage equality than did in May 2012. As of the publishing of this article, the total stands at 37—a complete reversal in numbers from only two years ago. Although Minnesota is among the few states added to that tally by legislation, the majority were put there pursuant to judicial decree, and mostly within the past year. By the end of next month—most likely on June 29, the last day of the term—the Supreme Court will decide whether those courts have gotten it right.

Unlike Perry, there are no standing issues that may prevent the Court from reaching a decision on the merits. Among the matters the Court will decide, look for the majority opinion to discuss: 1) whether its summary dismissal in Baker is still valid precedent; 2) whether same-sex couples share in the fundamental right to marry that the Court discussed in Loving, Zablocki, Turner, and other cases; 3) whether the Court considers the contested marriage laws to classify on the basis of gender—meaning that they must be subject to heightened constitutional scrutiny; 4) whether laws classifying on the basis of sexual orientation must be subject to heightened scrutiny; 5) whether principles of federalism (such as the Tenth Amendment and the domestic relations exception to federal jurisdiction) can legitimate the contested marriage laws; 6) whether a stated intent to maintain marriage as between a man and a woman can be considered animus evidence sufficient to strike down the ban; and 7) whether any rationale offered by the States, such as promoting procreation or deferring to the political process, can legitimate the challenged marriage laws.

In deciding question 1—whether its summary dismissal in Baker is still valid precedent—look to see if the Court also addresses question 3—whether the contested marriage laws classify on the basis of gender and are thus subject to heightened constitutional scrutiny. During oral arguments in Perry, Justice Kennedy stated that it was an interesting question, one that he had been wrestling with. Justice Ginsburg also indicated that Baker was from a different era, one that preceded heightened scrutiny for gender classifications.

On question 2—whether same-sex couples share in the fundamental right to marry—look for the Court to discuss its historical treatment of marriage and to also discuss question 5—whether principles of federalism can legitimate the contested marriage laws. The Supreme Court has articulated the right to marry no less than 14 times, describing it as a right associated with other fundamental rights, including privacy and association. While the Windsor opinion discusses the States’ historical regulation of marriage at length, principles of federalism have not previously stopped the Court from striking down state marriage laws that violate the Constitution. Thus, if the Court answers question 2 affirmatively, simultaneously doing so with question 5 would be difficult.

Regarding question 7—whether any rationale offered by the States, such as promoting procreation or deferring to the political process, can legitimate the challenged marriage laws—look for the Supreme Court to specifically address the Sixth Circuit’s assertion that deference to the political process constitutes a rational basis to uphold the contested marriage bans. The Supreme Court already dismissed the other rationales in Windsor.

While the Court’s precedent on marriage and gay rights may offer some strong clues into its likely opinion on the issue of marriage for gay and lesbian couples, perhaps the most anticipated answers for those now anxiously awaiting the Supreme Court’s pending decision is with regard to questions 4 and 6. With regard to 4—whether laws classifying on the basis of sexual orientation must be subject to heightened scrutiny, although the Eighth and Ninth Circuits have both previously ruled that the Supreme Court’s precedent only requires rational basis level review for laws that target gay and lesbians, the Supreme Court’s opinion in Windsor suggests otherwise. Indeed, the Ninth Circuit recently reversed its 2008 Witt opinion, concluding that Windsor was “dispositive of the question of the appropriate level of scrutiny” for sexual orientation classifications and requires heightened scrutiny. SmithKline v. Abbott Labs, 740 F.3d 471, 480–481 (9th Cir. 2014).

With regard to question 6—whether a stated interest in maintaining the “traditional” heterosexual definition of marriage is evidence of animus sufficient to strike down the laws—there is some thought that the Court could answer this affirmatively and avoid answering questions 4 and 7 altogether. The Court’s developing animus doctrine is something that University of Minnesota Law Professor Dale Carpenter has written about at length.[6] Essentially, the Court’s precedent seems to indicate that although a finding of animus toward a particular class of people is not necessary to strike down a law, a finding of animus is in fact sufficient to render the law unconstitutional. This doctrine is not part of the Court’s traditional equal protection analysis.

The significance of the answers from the Supreme Court on questions 4 and 6 extends beyond the issue of marriage equality. Across the country—most recently and most significantly in Indiana—states are passing laws meant to chip away at the rights of gay and lesbian citizens. In some cases, the laws don’t explicitly classify on the basis of sexual orientation but are nonetheless rooted in allowing discrimination on the basis of sexual orientation. Such laws, much like DOMA and the 13 remaining state marriage bans, inflict serious harms on gay and lesbian persons and their children, depriving them of hundreds of rights and protections, and stigmatizing them as inferior and unworthy of respect. Allowing the laws to stand would burden the lives of gay and lesbians persons “by reason of government decree, in visible and public ways . . . from the mundane to the profound.” Windsor, 133 S. Ct. at 2694.

Like the Supreme Court’s previous cases involving gay and lesbian persons, its pending decision will have long-term implications. To the extent that the Court answers the above-posited questions, with the above-discussed history in mind, come June 29, 2015, we may likely have some insight into the next legal steps for the gay civil rights movement.

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[1] Baehr v. Lewin, 852 P.2d 44 (Haw. 1993).

[2] Garcia v. Garcia, 127 N.W. 586, 589 (S.D. 1910). Indeed, the “policy of the civilized world[] is to sustain marriages, not to upset them.” Madewell v. United States, 84 F. Supp. 329, 332 (E.D. Tenn. 1949); see also In re Lenherr’s Estate, 314 A.2d 255, 258 (Pa. 1974) (“In an age of widespread travel and ease of mobility, it would create inordinate confusion and defy the reasonable expectations of citizens whose marriage is valid in one state to hold that marriage invalid elsewhere.”).

[3] e.g., Garcia, 127 N.W at. 587-589 (recognizing a marriage between first cousins that would have been prohibited and void if the parties had attempted to marry in South Dakota).

[4] Id.

[5] Although the Perry decision didn’t reach the merits, it did add to the Supreme Court’s evolving standing doctrine and effectively brought marriage equality to California.

[6] http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2424743

In an article published in The Week on Friday, Scott Lemieux reminds readers of one of the most troubling aspects of the murder of Walter Scott in North Carleston, South Carolina: if it wasn’t for the fact that it was captured on video by a bystander the police didn’t know existed, chances are Michael Slager would not only not have been charged with murder, but he’d still be a uniformed police officer.

From the article:

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A problem with officers who engage in violations of the 4th Amendment (excessive force, unlawful arrest, and unreasonable search and seizure)  is that they fall into the habit of acting out of a perceived sense of superiority and/or anger, and generally are not held responsible for that behavior. Thus, they get used to being obeyed regardless of the situation and often forget that the people they interact with are human beings deserving respect and fair treatment under the law.

In the video posted by The Washington Post, you can see the moment that Madison, Alabama Police Officer Eric Parker realizes that he made that very mistake. Unfortunately for his victim, that moment came too late.   Parker paralyzed an Indian grandfather visiting his American grandson on February 6, 2015 when he body slammed the man to the ground without any rational justification. From the Washington Post:

The FBI is investigating an incident in which an Indian grandfather’s encounter with police in Alabama left the man partially paralyzed. An officer involved in the incident is under arrest, and the police chief  proposed that he be fired, police said Thursday.

A spokesman for the FBI said that the agency became involved shortly after the Feb. 6 incident, and it is being treated as a civil rights investigation. The findings will be turned over to the Justice Department for review.

Sureshbhai Patel had recently come to the United States from his farm in India to help care for his grandson, who was born prematurely and was suffering from health complications.

At about 9 a.m. on Friday in Madison, Ala., just days into his visit, Patel was strolling through his family’s neighborhood when he was approached by police. A neighbor had called authorities and told them a man who looked  “suspicious” was peering into garages, according to the Huntsville Times. That man, police determined, was Patel.

Within minutes, the 57-year-old grandfather was face down on the ground with a severe neck injury that left him partially paralyzed.

A lawyer for Patel has filed a lawsuit against the Madison Police Department, alleging that his constitutional civil rights were violated and seeking damages. The lawsuit was filed Thursday in federal district court.

“First, I’m hoping that the truth will come out, second that this case might bring to life the real issues we have in this country about the police abuse of power where someone can’t try to blame it on the victim,” Hank Sherrod, the family’s attorney, told The Washington Post. “Here we’ve got someone who is truly blameless and innocent. He was brutalized, and hopefully will, but may never, walk again.”

Representatives from the Indian government visited Patel in the hospital on Thursday, Sherrod said.

Madison Police Chief Larry Muncey told reporters Thursday that he has recommended termination for one of the officers involved in the incident. Officer Eric Parker, Muncey, said, has also turned himself in on charges of assault in the third degree.

The Madison police concluded from its investigation into the incident that the officer’s actions “did not meet the high standards and expectations” of his department, Muncey said. Muncey apologized to Patel, Patel’s family, and the community. The police chief added that the FBI was conducting a “parallel inquiry to ascertain if there were any federal violations.” He declined to answer any questions, citing the pending lawsuit.

The department also released portions of audio and video pertaining to the incident. In a non-emergency call to police, a neighbor described Patel as a “skinny black guy” and said that he’d “never seen him before” in the neighborhood. Patel, he said, was “just wandering around” and “walking close to the garage.” The caller added that he was following Patel at a distance. When asked to estimate his age, the caller guessed Patel was in his 30′s.

The neighbor also told the police dispatcher he was “nervous” leaving his wife because of Patel’s presence in the neighborhood.

Syed Akbaruddin,  a spokesman for India’s Ministry of External Affairs, said Friday that the government was “extremely disturbed” about the incident and had expressed its concern to the U.S. Embassy in New Delhi, and also planned talks with officials in Washington and Alabama.

“We take the incident involving an Indian national very seriously,”  he said. “We want to make it abundantly clear we are extremely worried about what happened to Mr. Sureshbhai Patel, an Indian national.”

In an earlier statement, police said that Patel attempted to pull away from officers as he was being patted down, leading at least one officer to force him to the ground, “which resulted in injury.” Patel’s son, Chirag, told the Huntsville newspaper that police escalated the incident, not his father.

“He was just walking on the sidewalk as he does all the time,” said Chirag Patel, who arrived in the United States a decade ago to study engineering before getting married and becoming an American citizen. “They put him to the ground.”

“This is a good neighborhood. I didn’t expect anything to happen.”

Two videos of the incident later released by Madison police include both audio of the officers involved, and visuals of the exchange. In one video, a pair of officers approach Patel and ask him where he’s headed, what his address is, and request to see his ID. One officer says, “he’s saying ‘no English.’ ” The second officer continues to ask Patel questions, including “are you looking at houses and stuff?”

Sureshbhai Patel said he tried to tell the officers that he doesn’t speak English by saying “No English. Indian. Walking,” according to the lawsuit. He says he repeated his son’s house number and pointed toward the residence.

In the police video, an officer then tells Patel, “Do not jerk away from me again. If you do, I’m gonna put you on the ground.” The officer asks,  “Do you understand?” and tells Patel to “relax.”

That’s when an officer twisted his arm behind his back, Patel said, and forced him to the ground, face-first. His face was bloodied, but worse, he also injured his neck and was left paralyzed in his arms and legs, the lawsuit alleges.

One of the two police videos shows the officer holding Patel forcefully, pushing him to the ground. Patel, on the ground, is then told to “chill out” by one of the officers. The officer tells a third, approaching officer that Patel doesn’t “speak a lick of English,” and that they were trying to pat him down. “I don’t know what his problem is, but he won’t listen,” one of the officers adds.

Patel remains on the ground as the officers call for medical assistance.

“Stand up, let’s go,” one officer says. “You’re all right.” For several minutes, the officers repeatedly attempt to get Patel off the ground and into a patrol car.

One officer asks, “He OK?”

Sherrod, the family’s attorney, said things went wrong as soon as a neighbor who didn’t recognize Patel called police and reported suspicious activity.

“This is broad daylight, walking down the street,” Sherrod told the Huntsville Times. “There is nothing suspicious about Mr. Patel other than he has brown skin.”

Sherrod said officers left Patel on the ground, injured and bloodied and in desperate need of a paramedic.

“This is just one of those things that doesn’t need to happen,” the attorney said. “That officer doesn’t need to be on the streets.”

Speaking to The Post after the Thursday press conference, Sherrod said that he “appreciates [the police] doing the right thing on Thursday,” but criticized the department for not acting sooner. “On Monday they were trying to blame Mr. Patel,” he added.

Patel underwent cervical fusion surgery to relieve pressure on his spinal cord and has regained some feeling in his arms and one leg. He remains partially paralyzed. His left leg is entirely or mostly paralyzed and he lacks grip strength in his arms, the lawsuit said.

A fund was established to help cover the cost of Patel’s medical care and a recovery that could take months. He does not have health insurance.

Patel’s son told the Times that before the incident, he was proud to own a home in Madison. He chose the community, he said, because of the educational opportunities the area would someday provide his son. Now, he said, he’s not so sure about his decision.

“It is a dream for me because I came from a very poor family and I worked so hard here,” he told the paper. “I’m totally devastated that I might have made a big mistake.”

United States District Court

District of South Dakota 

EMERGENCY MOTION

On January 12, 2014, the Court entered judgment, declaring:

SDCL 25-1-1, SDCL 25-1-38, Article 21 § 9 of the South Dakota Constitution, and any other provision of state law that precludes people from marrying or refuses to recognize an existing marriage, solely because the individuals are of the same gender are unconstitutional because they violate the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment.

Rosenbrahn v. Daugaard, No. 4:14-CV-04081-KES, 2015 WL 144567, at *11 (D.S.D. Jan. 12, 2015). The Court further ordered that, “defendants are enjoined from enforcing those laws or otherwise declining to issue a marriage license solely because the applicants are of the same gender.” Id.

The Court, over Plaintiffs’ objections, also ordered that, “the effects of [the] judgment will be stayed until the judgment is final.” Id. While Plaintiffs believe they have already satisfied their obligations pursuant to Rule 8 of the Federal Rules of Appellate Procedure and could make the above-captioned motion at the Eighth Circuit Court of Appeals, they seek this Court’s reconsideration in light of recent decisions by the U.S. Supreme Court.

In its Order granting Plaintiffs’ Motion for Summary Judgment, the Court did not consider that on December 20, 2014, the Supreme Court of the United States denied the State of Florida’s request for a stay of a preliminary injunction enjoining the enforcement of Florida’s exclusion of same-sex couples in marriage while the litigation and appeals process continue. See Armstrong v. Brenner, 135 S. Ct. 890 (2014).

Nor did this Court, while discussing whether to stay judgment, take into account that on October 6, 2014, the United States Supreme Court denied certiorari in cases from the Fourth, Seventh, and Tenth Circuits, each of which had ruled in favor of same-sex couples’ constitutional freedom to marry, dissolving all previously-entered stays in those cases and allowing same-sex couples to begin marrying in those states. See Herbert v. Kitchen, 135 S. Ct. 265 (2014); Smith v. Bishop, 135 S. Ct. 271 (2014); Rainey v. Bostic, 135 S. Ct. 286 (2014). Since its denial of certiorari in those cases, and prior to this Court entering (and staying) judgment, the Supreme Court denied stays in every case in which a lower court struck down a state marriage ban; in each of those cases, the Supreme Court allowed lower court orders requiring states to issues marriage license to same-sex couples to take effect while appeals in those cases proceed. See: Wilson v. Condon, No. 14A533, 2014 WL 6474220 (U.S. Nov. 20, 2014) (South Carolina); Moser v. Marie, No. 14A503, 2014 WL 5847590 (U.S. Nov. 12, 2014) (Kansas); Otter v. Latta, No. 14A373, 2014 WL 5094190 (U.S. Oct. 10, 2014) (Idaho); Parnell v. Hamby, No. 14A413, 2014 WL 531181 (U.S. Oct. 17, 2014) (Alaska).

Four days after this Court entered and stayed judgment in Plaintiffs’ favor, the Supreme Court granted petitions for writ of certiorari in four cases that raise the very same issues presented in this case—whether a State must allow same-sex couples to marry and whether a State must recognize such marriages performed in other jurisdictions. See DeBoer v. Synder, No. 14-571, 2015 WL 213650, at *1 (U.S. Jan. 16, 2015); Bourke v. Beshear, No. 14-574, 2015 WL 213651, at *1 (U.S. Jan. 16, 2015); Obergefell v. Hodges, No. 14-556, 2015 WL 213646, at *1 (U.S. Jan. 16, 2015); Tanco v. Haslam, No. 14-562, 2015 WL 213648, at *1 (U.S. Jan. 16, 2015).

Most significantly, yesterday—February 9, 2015—the Supreme Court denied a request by the State of Alabama to stay the judgment of the Untied States District Court for the Southern District of Alabama, which had, on January 23, 2015, held that Alabama’s exclusion of same-sex couples from marriage violates the Fourteenth Amendment. Strange v. Searcy, No. 14A840, 2015 WL 505563, at *1 (U.S. Feb. 9, 2015).

Since October 2014, the Supreme Court has repeatedly and consistently denied motions to stay lower court decisions that struck down state bans on marriage equality as unconstitutional. Strange, 2015 WL 505563, at *1. The Supreme Court’s order in Strange indicates that the grant of review in DeBoer, et al, has not changed the Court’s conclusions that such stays are not necessary. To the extent that this Court’s entry of stay was premised on the fact that the Eighth Circuit Court of Appeals and/or the U.S. Supreme Court had not yet ruled on the constitutionality of state marriage equality bans, the Supreme Court’s post-certiorari refusal to grant a stay in the Alabama case demonstrates that the continued stay of the judgment in this matter is no longer appropriate.

When a party seeks a stay pending appeal, the court “must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief.” Amoco Prod. Co. v. Vill of Gambell, 480 U.S. 531, 542 (1987). Here, while Defendants have not shown that South Dakota would suffer any harm in the absence of a stay, the challenged laws are continuing to cause serious and irreparable harm to Plaintiffs and other same-sex couples and their children every day that the bans remain in effect. In addition, the stay on judgment is causing continued insecurity, vulnerability, and stigma. The purpose of marriage is, in large part, to provide security and protection in the face of anticipated and unanticipated hardships and crises—e.g., in the face of death, aging, illness, accidents, incapacity, and the vicissitudes of life. Indeed, Plaintiffs in this case have dealt with such issues during the pendency of this litigation. This harm is not speculative, but immediate and real.

This Court has recognized that the denial of marriage to Plaintiffs and other loving and committed same-sex couples is the deprivation of fundamental rights guaranteed by the United States Constitution. Rosenbrahn, 2015 WL 144567, at *10. Under well-settled law, any deprivation of constitutional rights, “for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976).

Defendants have not demonstrated a likelihood of success on the merits and have offered no evidence that they will suffer any harm—much less irreparable harm—if this Court’s judgment is in effect while the appeal is pending. Defendants have identified no meaningful burden to the State of South Dakota or its agencies or political subdivisions that would arise if the State is required to issue marriage license to same-sex couples and recognize such marriages performed in other jurisdictions while the appeal is pending in this matter.

Defendants cannot argue that enjoining the enforcement of a state law is in itself a form of irreparable injury to the State. That is equally true of any case in which a court permanently enjoins a state law because the law is unconstitutional. Such arguments, taken to their conclusion, would mean that a permanent injunction can never be granted in a constitutional challenge without being stayed pending appeal. That manifestly is not the law. See Nken v. Holder, 556 U.S. 418, 433 (2009) (“A stay is not a matter of right.”)

It cannot be argued that in the absence of a stay, South Dakota’s issuance of marriage licenses to same-sex couples would result in uncertainty concerning the validity of those marriages. There will be no uncertainty, as the law is clear that marriages validly entered into pursuant to a district court’s order while appeal is pending remain valid regardless of the appeals’ outcome. See Caspar v. Snyder, No. 14-CV-11499, __ F. Supp. 3d __, 2015 WL 224741, *27; Evans v. Utah, No. 2:14-CV-55-DAK, 2014 WL 2048343, at *17 (D. Utah May 19, 2014).

While this Court (in its Order dated January 12, 2015) discussed the factors traditionally weighed to determine whether a stay on judgment should entered, it did not have the benefit of the Supreme Court’s most recent action in Strange. With that backdrop, it is fundamentally unfair and logically inconsistent that same-sex couples in Florida and Alabama (among other states) can marry and have their marriages recognized while the Supreme Court considers the very issues decided by this Court, but families in South Dakota must continue to suffer irreparable harm and constitutional violation. Thus, this Court’s conclusion that the public interest weighs in favor of a stay on judgment must be reconsidered and the stay on judgment immediately vacated. “It is always in the public interest to prevent the violation of a party’s constitutional rights.” G&V Lounge, Inc. v. Mich. Liquor Control Comm’n, 23 F.3d 1071, 1079 (6th Cir. 1994).

The Plaintiffs and same-sex couples across South Dakota have waited years—in many cases, decades—to be treated equally in accordance with the Constitution. They should not have to one more day. Accordingly, Plaintiffs respectfully request action on this Motion by this Court within one week.

Dated: February 10, 2015.

Madia Law LLC

[signed by hand]
Joshua A. Newville
Admitted pro hac vice
345 Union Plaza
333 Washington Avenue North
Minneapolis, Minnesota 55401
Phone: (612) 349-2743
Fax: (612) 235-3357
joshuanewville@madialaw.com

Burd and Voigt Law Office

/s/Debra Voigt                  .
Debra Voigt
SD Bar No. 2473
601 S. Cliff Ave, Suite A
Sioux Falls, SD 57103
Phone: (605) 332-4351
Fax: (605) 334-6844
debra@burdandvoigt.com

(Sioux Falls, SD)– On January 12, 2015, on behalf of six same-sex couples, Madia Law won a historic civil rights victory in a constitutional challenge to South Dakota’s ban on marriage equality. From the New York Times and the Associated Press:

SIOUX FALLS, S.D. — A federal judge on Monday declared South Dakota’s [bans on marriage equality] unconstitutional, but marriage licenses won’t be immediately issued because the ruling was put on hold pending a potential appeal.

U.S. District Judge Karen Schreier sided in favor of the six couples who filed the lawsuit in May in Sioux Falls. The lawsuit challenges a 1996 state law and a voter-approved 2006 constitutional amendment that ban gay marriage.

“Plaintiffs have a fundamental right to marry,” Schreier wrote. “South Dakota law deprives them of that right solely because they are same-sex couples and without sufficient justification.”

Attorney General Marty Jackley on Monday said the state will appeal the case to the 8th U.S. Circuit Court of Appeals, a conservative-leaning federal appeals court that in 2006 affirmed Nebraska’s right to ban same-sex marriages.

“It remains the state’s position that the institution of marriage should be defined by the voters of South Dakota and not the federal courts,” Jackley said.

He said he’s obligated by law to defend both the state constitution and state statutes.

Two other states — Arkansas and Missouri — already have appealed similar federal district court rulings to the 8th Circuit. This court is generally considered more conservative than others, said Adam Romero, senior counsel in the Williams Institute at the UCLA School of Law. However, Romero warned, judges “from all ideological perspectives” have tended to agree that state marriage bans are unconstitutional since the U.S. Supreme Court decision to strike down the Defense of Marriage Act in 2013.

“While it is impossible to predict what the court will ultimately do, given the large number of judges who have struck down same-sex marriage bans, we can assume that the 8th Circuit will give the marriage bans in this circuit a very, very close scrutiny,” Romero said.

The U.S. Supreme Court again is considering whether to hear a gay marriage case, and more appeals court rulings — especially if they conflict — could increase the likelihood the justices will do so.

In November, the 6th U.S. Circuit Court of Appeals based in Cincinnati became the first appellate court to recently uphold state bans on same-sex marriage. Plaintiffs from Kentucky, Michigan, Ohio and Tennessee are asking the Supreme Court to reverse that decision. Four other appeals courts — based in Chicago, Denver, San Francisco and Richmond, Virginia — have ruled in favor of gay and lesbian couples. Arguments over bans in three Southern states were held last week before a New Orleans-based appellate court.

Romero said that the more cases that are pending at the 8th Circuit will only increase the pressure on that court to issue its ruling. But the court could put the cases on hold if the Supreme Court decides to take on the issue.

Presently, 36 states and the District of Columbia allow same-sex couples to marry, nearly twice as many as just three months ago.

The South Dakota couples’ attorney, Josh Newville, said Monday’s developments represent the last opportunity for the state’s “elected officials to be on the right side of history” by not appealing Schreier’s decision.

“I would say that Attorney General Jackley needs to consider very seriously the amount of money that he’s pouring into this lawsuit on behalf of the state to keep a discriminatory law in place,” Newville said.

Five of the couples have already married in either Iowa, Connecticut or Minnesota. Nancy Rosenbrahn, of Rapid City, married her longtime partner in April in Minneapolis.

“On one hand, this is like the best present ever,” Rosenbrahn said of the decision Monday. “On the other hand, you go back and you say ‘Well, yeah, it should be a yes,’ because we are no different than anybody else. There is no reason to say we can’t get married. There is no valid reason to do that anymore.”

Practicing in civil rights litigation, we see a lot of police officers abuse their power. Unfortunately, there are many reasons police misconduct usually stays out of the public spotlight. There are myriad systemic barriers to holding bad cops accountable for discrimination, excessive force, illegal search and seizures,  unlawful arrests, and more. They include:  gutting of civilian review authorities, failed oversight, use of squad and body cameras, non prosecution of officers by prosecutors, the militarization of police, powerful police unions, pocketed arbitrators, institutionalized racism, victims with criminal records, and many others.

The problems are on such a broad scale and are so layered and complicated that piercing through all of them would require a complete overhaul to the way we police our law enforcement and govern ourselves. It seems, however, that such an overhaul will only come if we reach a point where, as a public, we stop forgetting about the problem between events that garner national media attention. We must start regularly and continuously demanding answers and changes from our governments, prosecutors, judges, and politicians.

Although the courtroom is one venue to get justice for those such as Michael Brown (Ferguson, Missouri) and Eric Garner (New York City) (and we’re proud to be a part of that) we must also focus on prevention.  If we truly want to stop these things from happening, we must care enough to do more than have periodic outrage.

The most immediate way to get involved is to get active in city-level politics. Attend board meetings; talk to your city council representative; get involved in the elections of prosecutors and police administrators; inform the media; request data pursuant to Freedom of Information Act; …do what it takes to become knowledgeable and involved.

The events of the past few months–and ones similar to them–are about more than those cops and their victims. They are about who we are as a nation. They’re about who we are as people and how we treat each other. We must acknowledge that we have a national problem. And once we do, we must not knowingly allow those who wear the badges of our governments to inflict injustice. We must get involved.

CONTACT:
Attorney Joshua Newville
office: 612.349.2743
cell: 651.210.7135
joshuanewville@madialaw.com

–FOR IMMEDIATE RELEASE—

(Sioux Falls, SD, Nov. 14, 2014)—South Dakota’s marriage equality lawsuit is moving forward after United States Judge Karen Schreier rejected the State’s motion for the case to be dismissed on Friday.

The Court heard arguments in Rosenbrahn v. Daugaard on October 17 in Sioux Falls. The Attorney General’s Office argued that a 2006 8th Circuit Court of Appeals case required dismissal. Plaintiffs’ attorney Joshua Newville argued that case isn’t on point and that the controlling decision is United States v. Windsor, the 2013 Supreme Court case that struck down the federal Defense of Marriage Act.

In a 28-page opinion, issued Friday afternoon, Judge Schreier agreed with the plaintiffs, writing, “Given the subsequent developments recognized almost uniformly by federal courts following the Supreme Court’s decision in Windsor, Baker is no longer binding authority. Although Bruning explained that sexual orientation is not a suspect class, it did not address whether marriage is a fundamental right. Thus, those cases do not foreclose relief on plaintiffs’ due process and equal protection claims.”

The Court will now consider the legitimacy of the marriage bans. Judge Schreier ordered state officials to respond to the plaintiffs’ motion for summary judgment within ten days. The State must explain why its refusal to wed same-sex couples and its refusal to recognize out-of-state marriages of same-sex couples do not violate U.S. Constitution guarantees of due process and equal protection.

“Every reason the State offers to support these discriminatory laws has already been wholly rejected by the vast majority of courts to consider this issue,” said Newville. “The Supreme Court’s decision to let stand four recent appellate rulings striking down similar marriage bans also bolsters our case. The days of South Dakota proudly discriminating against these families are numbered,” he added.

The plaintiffs filed their motion for summary judgment in early July. Debra Voigt, one of the lawyers for the couples, said, “We are all very happy this case is moving forward and are encouraged by the Court’s ruling today. We are optimistic that this is one step closer to marriage equality here in South Dakota.”

The six plaintiff families are from across the state and include veterans, nurses, a stay-at-home mom, a truck driver, a couple who’s been together 30 years, and couples with children and grandchildren. “The law requires South Dakota to treat these families equally and with same dignity and respect it gives families with different-sex couples,” said Newville.

Plaintiff Clay Schweitzer of Rapid City said, “My husband Jeremy [Coller] and I were both born and raised in South Dakota. We love it here. South Dakota is where we met, were we have built our lives together, and where Jeremy accepted my proposal in the Black Hills. We look forward to the day when South Dakota treats our family equally to all others.”

While the Court dismissed Plaintiffs’ right-to-travel claim, Newville explained: “We believe that South Dakota’s discriminatory marriage scheme violates the law in a number of ways, including an unconstitutional infringement on the right to relocate within the United States. While the Court disagreed with our reasoning on that claim, the Judge did agree with the over 50 other courts that ultimately ruled in favor of marriage equality in the last 15 months that these couples’ have presented valid equal protection and due process claims.”

The couples are represented by four attorneys:

• Lead counsel Joshua Newville of the Minneapolis firm Madia Law LLC. Newville is the civil rights attorney who filed the lawsuit on May 22, 2014. He also represents seven families in a similar challenge to North Dakota’s marriage equality bans, which he filed on June 6, 2014.
• South Dakota attorney Debra Voigt of Burd and Voigt Law Offices in Sioux Falls. Voigt is an active member of her community and has practiced family law in South Dakota for nearly 20 years.
• National Center for Lesbian Rights attorneys Shannon Minter and Christopher Stoll. NCLR, a LGBT advocacy organization based in San Francisco, has been instrumental in the national fight for marriage equality, including the 10th Circuit Idaho case that was the first in the country after Windsor to have marriage equality upheld by a federal appellate court. Minter and Stoll are also working with Newville on the North Dakota case.

In August 2012, I wrote about the problem with the City of Minneapolis dispensing with civilian review of police officers’ conduct. That year, the Minneapolis Police officers’ union, Velma Korbel and Susan Segal collectively took a nail gun to the coffin of the now-defunct Civilian Review Authority.

Over two years later, Minneapolis Mayor Betsy Hodges penned an open letter acknowledging that Minneapolis has some bad police officers and that there is a strained relationship between Minneapolis police and parts of the community. Mayor Hodges also reiterated her commitment to civilian review and police officer accountability in general. In doing so, she mentioned the need for the culture of the Minneapolis Police Department to change, which I wholeheartedly agree with. (For example, this summer,  I spoke with watchdog.org about the militarization of police and the effect it can have on the culture of a police department.)

In the end, Mayor Hodges proposed several things to establish such a culture changes, including the use of body cameras by Minneapolis Police officers. Use of body cameras by those  we give a badge and a gun and entrust to protect us should be celebrated as advancements in both technology and accountability. Body cameras protect the majority of police officers, who have hard jobs but carry out their duties with integrity and professionalism. They also protect civilians who, quite frankly, are too often victims of illegal conduct by bad cops.

Unfortunately, some police officers don’t like the use of technology that helps ensure such accountability. Last week, in what amounts to transparent retaliation against Mayor Hodges for her extremely reasonable position, officers of the Minneapolis Police Department sent a photo to KSTP News of Mayor Hodges posing with a North Minneapolis get-out-the-vote volunteer. The officers declared that Mayor Hodges, who was pointing at the volunteer, was flashing a “known gang sign.” The nation collectively exhaled. 

#Pointergate–as the scandal has come to be known–barely begins to highlight the significant barrier police unions have become to police officer accountability. The true power of these unions is demonstrated by their consistent and often successful defense of some truly bad cops. Officers like the Metro Gang Strike Force, Sherry Appledorn & Joe Will, Beating of Derryl Jenkins, Shooting Death of Dominic Felder deserve to be pushed out of the police department before their behavior and attitudes result in such significant civil rights violations, not protected by their peers out of blind allegiance. Ultimately, more so than #pointergate, the unions’ successful lobbying to gut the Civilian Review Authority demonstrates why it is a real barrier to the public’s effort to hold bad police officers accountable.

Litigation cannot be the only check on bad cops’ conduct. Madia Law fully supports Mayor Hodges’ position on officer accountability and police-community relations. It is time to reverse the trend. Transparency is better for both police officers and citizens.

Rule 68 of the Federal Rules of Civil Procedure contains an interesting and nuanced option for civil defendants to settle a case. Rule 68 states in part, “At least 14 days before the date set for trial, a party defending against a claim may serve on an opposing party an offer to allow judgment on specified terms, with the costs then accrued.” Fed.R.Civ.P. 68(a). Essentially, the defendant may offer the plaintiff a settlement amount to try and end the case.

Here’s the catch for the defendant: if the plaintiff accepts the offer, judgment is entered against the defendant. Similar to a plea bargain in a criminal case, the defendant is admitting liability to avoid going to trial.

Now, here’s the catch for the plaintiff: if the plaintiff does not accept the offer and takes the case to trial and the jury awards the plaintiff an amount in damages less than the defendant’s offer or no damages at all, the plaintiff must pay for all of the defendant’s costs that were incurred after the offer.

In other words, Fed.R.Civ.P. 68(d). Rule 68 seems to be a double-edged sword when not used strategically. (more…)

Today, the United States Supreme Court denied to review opinions issued by three appellate courts that declared bans on same-sex marriage unconstitutional. The practical effect of the order denying review is that, after the dust settles, 11 additional states will have marriage equality — bringing the total to 30 within the next few months.

For couples living in states without marriage equality, today’s announcement is bittersweet. While the Supreme Court’s inaction is a positive in that it expands the number of states where discrimination in marriage based on sexual orientation is not legal, it means more waiting for those who live in other states.

KMSP-TV

Many of the states without marriage equality also lack legislation that protects gay people from discrimination (for example, in housing and employment). Similarly, many of those states do not provide make it a hate crime to violently target a gay person for no other reason than that person’s sexuality.

Until the Supreme Court (or, alternatively, every appellate court in the country) declares marriage equality to be the law of the land, litigation will continue.

Madia Law is proud to represent thirteen same-sex couples in historic challenges to marriage equality bans in both South Dakota and North Dakota. For those couples, today’s events are a source of optimism about the eventual outcome of their cases. Madia Law will continue to fight on behalf of them and all gay and lesbians who are denied their rights and equal protection under the laws.

KFGO: Attorney Joshua Newville on Supreme Court’s Decision on Same Sex Marriage

In an alarming video posted to YouTube this week, two St. Paul police officers violently arrested and tazed a black man who was simply waiting in the skyway to pickup his children from New Horizon’s Academy. The CityPages reports that the man is Chris Lollie; his mugshot is posted below.

Officers. M. Johnson and Bruce Schmidt filed a report that indicated Lollie had refused to leave the area; paradoxically, the report made no mention of why Lollie wasn’t allowed in the skyway. The officers inexplicably  charged Lollie with three crimes, all of which were dismissed. Based on the video and the available information, a lawsuit against the officers seems highly likely.

Madia Law, who does not represent Lollie, prosecutes lawsuits against police officers in Minnesota and Wisconsin who violate the 4th Amendment of the U.S. Constitution by performing unreasonable searches and seizures, unlawful arrests, or using excessive force.  Additionally, Madia Law holds government officials accountable for racism, sexism, sexual orientation discrimination, and more, by bringing suit for violations of the 14th Amendment.

See also: April 2012: Madia Law Wins Jury Trial in Federal Court for Excessive Force By St. Paul Police

See also: June 2014: Madia Law Jury Trial Verdict: Officer Violated 4th Amendment